Last month, it was revealed that police are routinely using phone tracking and sometimes hiding the fact that they use this type of surveillance. A New York Timesreport on the issue was based on documents turned over to the ACLU after many state affiliates filed public records requests with local law enforcement agencies. The Times noted that “civil liberties advocates say the wider use of cell tracking raises legal and constitutional questions, particularly when the police act without judicial orders.”

Now, Sen. Al Franken (D-Minn.) (who wrote an op-ed about privacy and civil liberties a couple of months ago) is looking into the use of cellphone tracking by police, sometimes without judicial safeguards. Franken is chairman of the subcommittee on Privacy, Technology and the Law of the Senate Judiciary Committee. Franken has sent a letter (pdf) to the Justice Department and Attorney General Eric Holder concerning the cellphone tracking and whether police procedures are “working around” a recent U.S. Supreme Court decision concerning location tracking.

In United States v. Jones, the police, without a valid warrant, placed a global positioning satellite (GPS) technology device on the car of a suspected drug dealer in Washington, D.C. The police then tracked the movements of Antoine Jones for several weeks with this device, and they used the data collected to convict him of conspiracy to sell cocaine. The Supreme Court was set to decide whether the warrantless surveillance and tracking was a search under the Fourth Amendment right against unreasonable searches and seizures. In a unanimous decision (pdf), the court held that police do need a valid warrant to place a GPS device on a vehicle.

In the letter, Franken wrote:

I was very concerned to read recent reports suggesting that state and local law enforcement agencies may be working around the protections of Jones by requesting the location records of individuals directly from their wireless carriers instead of tracking the individuals through stand-alone GPS devices installed on their vehicles. I was further concerned to learn that in many cases, these agencies appear to be obtaining precise records of individuals’ past and current movements from carriers without first obtaining a warrant for this information. I think that these actions may violate the spirit if not the letter of the Jones decision.

He asked the Justice Department to respond to several questions by June 11. The questions include: “How many requests for location information has the Department of Justice filed with wireless carriers in each of the past five calendar years and from January to April of this year? How many individuals’ location information was asked for in these requests?”; “What historical and prospective (i.e. real-time) location information do you request from wireless carriers (e.g., cell site data, GPS data)?”; and “What legal standard does the Department of Justice believe applies to a request for historical location data (e.g., subpoena, court order, warrant, etc.)?”

It will be interesting to see what answers are given by the Justice Department.